How Much Experience must be Considered on a Small Business Joint Venture on Category Management, Well, that All Depends-Let’s Look at OASIS/GSA and the GAO Protest

By: Christine V. Williams on 02/23/2019

GSA administers seven groups of Government-wide multiple award IDIQ OASIS contracts that are set-aside for small business.  These seven groups of IDIQs are referred to as pools.  In Ekagra Partners, LLC, B-408685.18, (GAO Feb. 15. 2019), there was a protest concerning the OASIS small business pool contracts.  The RFP advised that awards will be made to the offerors whose proposals are found to be the most highly rated under the non-cost/price factors and that offer a fair and reasonable cost/price.

For the non-cost/price factors, the proposals were to be evaluated based on factors in two categories: (1) minimum requirements, which were to be evaluated on an acceptable/unacceptable basis, and (2) self-scored evaluation criteria, under which offerors indicate whether they qualify for points.  The scored noncost/price factors are relevant experience; past performance; and systems, certifications, and clearances. The RFP advises that the non-cost/price factors, when combined, are significantly more important than cost/price.

Offerors were to provide  information regarding relevant experience for projects in three categories: (1) pool qualification projects, which “demonstrate an Offeror’s experience in performing complex professional services and the responsibility for the overall performance and completion of the entire Project as a Prime Contractor” for a North American Industry Classification System or product service code listed in the solicitation; (2) relevant experience (primary) projects, which “demonstrate an Offeror’s experience in performing complex professional services and the responsibility for the successful completion of the entire Project as a Prime Contractor”; and (3) relevant experience (secondary) projects, which“demonstrate an Offeror’s experience in managing multiple customers and/or managing in a multiple award contracting environment similar to the OASIS [small business] Program and the responsibility for the successful completion of the entire Project as a Prime Contractor.”

Mentor Protégé Joint Venture Past Performance

For offerors that submit proposals as part of a mentor-protégé joint venture, the RFP states that they may identify projects that were performed by the individual joint venture members.  For such offerors, however, the RFP limits the number of projects that may be identified as being performed by a large business mentor firm.

Congressional and Regulatory History Mandating Consideration of Past Performance of JV Partners-Maybe Just Not How Much Weight is Given

In 2014, Congress amended the Small Business Act to require agencies to consider the experience of small business joint venture members.  15 U.S.C. § 644(q)(1)(C).  SBA followed suit with the requisite regulations to implement the intent of Congress.  13 CFR 125.8.  The protestor argued that limiting the number of projects that may be submitted by a large business mentor firm is unreasonable because it hinders ‘otherwise qualified and capable small businesses’ from presenting the most competitive offers for the competition.

GSA argued that the evaluation criteria are consistent with the amendment to the Small Business Act and the SBA regulations because the solicitation provides for the consideration of the experience each joint venture partner.  GSA contended, however, that the applicable statutes and regulations do not require that the experience of the mentor and protégé members of a joint venture be given equal consideration.

GAO asked SBA on its views on the issues raised and SBA agreed that future regulations may address the weight the agency must give the past performance of each member of the JV; the current regulations hold no such requirement.  The GAO then agreed with SBA and GSA on this point and looked to the agency’s rationale for including the restriction.

GSA stated that limiting the amount of reliance on the Other than Small joint venture member or allowing all of the experience to come from the Other than Small member gives the joint venture a ‘fundamentally unfair competitive advantage as compared to other small businesses that are not a part of a joint venture.  The small business relying on the past performance pointed out that the Other than Small business could have been limited to the percentage of the amount of work its allowed to perform under the SBA’s mandatory performance levels.  Although one could see the merit in this argument, GAO agreed that the GSA had a rational basis for the limitation placed in the solicitation and upheld it.

Contractor Teaming Arrangements (CTAs)

The solicitation allows small businesses to submit proposals as CTAs where the small business is a prime contractor and other firms acts as subcontractors, and thereby rely on the experience of both prime contractor and subcontractors.  In contrast, the solicitation prohibits joint ventures, like those formed with a mentor protégé relationship, from submitting proposals that rely on the experience of subcontractors.  GAO will look at rationale behind such a restriction where there is a statutory or regulatory absence stating the reason, as is the case here.  GSA stated that its rationale was reasonable because it would avoid ‘significant administrative burdens’ and gave examples of what it considers to be so.

GAO concluded GSA’s did not reasonably explain its position in how the evaluation would be more administratively burdensome.  Accordingly, the GAO recommended that GSA reassess its rationale for including the restrictive term and document its justification.  If GSA finds no justification, GAO recommended revising the requests for proposals to remove the challenged term.   For a link to the protest, click here: JV Past Performance